finarti nez@escobarlaw.com

IN THE FIFTH DISTRICT COURT OF APPEAL FOR THE STATE OF FLORIDA

DANTE MARTIN, Appellant,

STATE OF FLORIDA, Appellee.

Case No.: 5D15-284

L.T. No.: 48-2012-CF-5695

AN APPEAL FROM THE NINTH JUDICIAL CIRCUIT COURT IN AND FOR ORANGE COUNTY, FLORIDA

REPLY BRIEF OF APPELLANT

Frances E. Martinez, Esquire Florida Bar No: 0036200 Escobar & Associates, P.A. 2917 W. Kennedy Blvd., Suite 100 Tampa, Florida 33609

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TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES CITED . . 11

ARGUMENT i

Issue One The trial court erred in denying the Amended Motion to Declare section 1006.63, Florida Statutes Unconstitutional .................... i

Issue Two:

Issue Three:

Issue Four:

Issue Five:

Issue Six:

CONCLUSION

The trial court erred in denying the Motion to Dismiss Count 1 Manslaughter.

The trial court erred in admitting testimony and photographs of the autopsy ................ The trial court erred in denying Mr. Martin's proposed jury instruction on uncharged conspiracy.

The trial court erred in instructing the jury on hazing.

The trial court erred in denying the motion for mistrial.

CERTIFICATE OF SERVICE 10

CERTIFICATE OF COMPLIANCE 10

TABLE OF AUTHORITIES Cases

Adams y. Culver, 111 So. 2d 665 (Fia. 1959)

Bouters y. State, 659 So. 2d 235 (Fia. 1995)

Brown y. State, 629 So. 2d 841 (Fia. 1994)

Carpenterv. State, 785 So. 2d 1182 (Fia. 2001)

Colon y. State, 53 So.3d 376 (Fia. 5th DCA 2011)

Houserv. State, 474 So.2d 1193 (Fia.1985)

Lawrence y. State, 801 So.2d 293 (Fia. 2d DCA 2001)

Rodriguez y. State, 875 So. 2d 642 (Fia. 2DCA 2004)

State, Dep 't of Fin. Servs. y. Peter R. Brown Const., Inc., 108 So. 3d 723 (Fia. ist DCA2O13) ........................................................ 2

State y. Heathcoat, 442 So.2d 955 (Fia.1983)

Terry y. State, 668 So. 2d 954 (Fia. 1996)

Woods y. State, 733 So. 2d 980 (Fia. 1999)

Other Sources

2 Fia. Prac., Appellate Practice § 27:2 (2015 ed.)

Philip J. Padovano, Florida Appellate Practice § 8.4 (2011 ed.)

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ARGUMENT

The trial court erred in denying the amended motion to declare section 1006.63, Florida Statutes unconstitutional.

In its Answer Brief, the State argues that Mr. Martin fails to identify what

constitutionally protected conduct the hazing statute substantially reaches.

However, in his amended motion to declare section 1006.63, Florida Statutes

unconstitutional, Mr. Martin thoroughly discussed numerous instances of

protected conduct - freedom of expression and association - that the hazing

statute reaches. For example, he identified the following collegiate competitions:

1) the University of Alaska Anchorage "Polar Bear Plunge" where participants

jump in to sub-freezing waters; 2) the Alpha Psi rodeo; 3) the University of South

Florida "Fireman's Challenge"; 4) the University of Florida Tough Mudder

competition; and 5) the University of Central Florida "Warrior Dash." [R. 281 -

85] In each of these events, college students participated in grueling physical

activity for the sake of camaraderie and personal satisfaction. Each of these events

- wherein the participants engage in constitutionally protected conduct - could be

punishable under a literal reading of the hazing statute.

Likewise, Mr. Martin identified his own constitutionally protected conduct

that the hazing statute substantially reached. Keon Hollis testified that Mr. Martin

slapped him with an open hand prior to Mr. Hollis' "crossing" the bus. [T. 442]

Mr. Martin argued that an open hand slap is a form of tradition in fraternal,

military and religious organizations. [R. 285]

The State claims that the statute is not overbroad as to Mr. Martin because

he "advised that the crossing would occur that night" and was "the one telling

them what to do." Preciously illustrating Mr. Martin's point, neither of those

actions are criminal. Likewise, both of these actions - constituting a person

arranging for another to participate in a voluntary competition - are

constitutionally protected acts of expression and speech. Despite this, the hazing

statute substantially reaches the conduct.

As to Mr. Martin's claim that the term "brutality" is vague as used in the

hazing statute, the State argues that, because the statute gives examples of brutal

behavior, it is not vague

A government restriction is vague if it "either forbids or requires the doing

of an act in terms so vague that men of common intelligence must necessarily

guess at its meaning and differ as to its application." Bouters y. State, 659 So. 2d

235, 238 (Fla. 1995). The use of examples does not cure a statute's vagueness.

See State, Dep 't of Fin. Servs. y. Peter R. Brown Const., Inc., 108 So. 3d 723, 728

(Fla. ist DCA 2013)(finding that a statute was still vague despite providing

examples of proscribed conduct where no qualifying language was available as a

standard to determine what items were covered and what items were not covered)

"Brutality" is not defined in the statute. However, it is generally defined as

"savage physical violence; great cruelty." The list of examples provided in the

statute is not dispositive as the determination of whether an act is "savage" or

"cruel" is prone to subjectivity.

As to the vagueness of the undefined term "competition," the State argues

that the term is not vague because its meaning can be ascertained from its

everyday usage. Referring to the Merriam-Webster dictionary, the State defines a

"competition" as "the act or process of trying to get or win something (such as a

priz or a higher level of success) that someone else is also trying to get or win."

However, this argument is misplaced. The term "competition" is vague because

its inclusion suggestions that something that could otherwise include all of the

apparent traits of hazing identified by the statute, including those of a "brutal"

nature, are exempt from the hazing statute if it is a "competition." That alone

makes it almost impossible to determine what either "competition" or "hazing" is,

if they can both apparently involve the alleged evils that the statute seeks to avoid,

and yet one is lawful and the other is not.

The Florida Supreme Court has made clear that, when there is doubt about

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statute in a vagueness challenge, the doubt should be resolved "in favor of the

citizen and against the state." Brown y. State, 629 So. 2d 841, 843 (Fla. 1994). In

this case, there is sufficient doubt about the statute, requiring the doubt to be

resolved in favor of Mr. Martin.

Finally, the State fails to address Mr. Martin's argument that, in summarily

denying the motion, the trial court deprived Mr. Martin of the opportunity to

introduce expert testimony. The expert testimony was relevant to provide the trier

of fact the tools necessary to determine an important question of material fact - the

grammatical meaning of the statute.

For these reasons, and the reasons outlined in the Initial Brief, the trial court

erred in denying the amended motion to declare Section 1006.63, Florida Statutes

unconstitutional.

II The trial court erred in denying the motion to dismiss count i manslaughter.

In its Answer Brief the State improperly frames the issue as one of

prosecutory discretion. Section 1006.63(6) does not authorize prosecution under a

more general statutory provision where that statutory provision carries a heavier

penalty. Instead, a special statute controls where it carries a smaller penalty than a

general statute

EI

special statutes control over general statutes where the "criminal statutes in which

the specific provisions relating to particular subjects carry smaller penalties than

the general provision." Adams y. Culver, 111 So. 2d 665, 667 (Fla. 1959).

Mr. Martin was convicted of both manslaughter and hazing resulting in

death. In drafting the self proclaimed toughest anti-hazing statute in the country,

the Legislature passed a bill punishing felony hazing as a third degree felony. To

allow additional prosecution for a crime carrying a heavier penalty would

counteract the Legislature's intent

Florida courts have repeatedly held that the legislature does not intend to

punish a single homicide under two different statutes. See Houser y. State, 474

So.2d 1193, 1196 (Fla.1985)(A defendant may not be sentenced for both DWI

manslaughter and vehicular homicide for effecting a single death); Rodriguez y

State, 875 So. 2d 642 (Fla. 2DCA 2004)(defendant could not be convicted of

third-degree murder and DUI manslaughter where convictions were based on

single death); Colon y. State, 53 So.3d 376 (Fla. 5th DCA 201 1)(defendant could

not be convicted of both leaving the scene of an accident with death and vehicular

homicide against same victim)

The State's reliance on Lawrence y. State, 801 So.2d 293 (Fla. 2d DCA

2001) for the proposition that Mr. Martin is not being punished twice for one

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death is entirely misplaced. In Lawrence, the appellant's offenses "arose from two

separate acts that occurred sequentially. She first operated her vehicle while

intoxicated and caused a death. Thereafter, she left the scene of the accident when

she knew or should have known of the death." 801 So.2d at 295. In this case, on

the other hand, the offenses of manslaughter and hazing resulting in death arose

from only one act.

Because manslaughter carries a heavier penalty than hazing resulting in

death, the trial court erred in denying the motion to dismiss count i manslaughter.

III. The trial court erred in admitting testimony and photographs of the autopsy.

It appears the State is arguing that Mr. Martin did not preserve this claim for

appeal because, after the trial court reserved ruling on his motion in limine, "there

is nothing in the record on appeal to indicate that Martin requested any further

ruling.

It is not uncommon for a trial judge to reserve ruling on a motion until the

issue can be considered in the context of the evidence presented at trial. In that

event, the party making the motion in limine is not required to get a "further

ruling." Instead, the party has to renew the objection at trial to preserve the issue

for review. 2 Fia. Prac., Appellate Practice § 27:2 (2015 ed.)

As to the admissibility of the evidence, Appellant relies on the arguments in

his Initial Brief.

IV. The trial court erred in denying Mr. Martin's proposed jury instruction on uncharged conspiracy.

The State argues that this issue was not preserved for appeal. The State

argues that Mr. Martin objected only to the State's proposed instruction and that,

because the trial court crafted it's own instruction, the objection was not

preserved

In order to preserve an issue for appeal, the "objection must be specific

enough to inform the judge or judicial officer of the alleged error and to preserve

the issue for intelligent review of appeal." Philip J. Padovano, Florida Appellate

Practice § 8.4 (2011 ed.). In other words, an objection must state the reasons on

which it is based and specifically identify the alleged error. See Woods y. State,

733 So. 2d 980 (Fla. 1999); Terry y. State, 668 So. 2d 954 (Fia. 1996). Clearly,

such is established in this case.

Mr. Martin argued that the jury instruction did not apprise the jury of (1)

what a conspiracy is, and (2) that it must find that the conspiracy was established

by the evidence. [T. 914; 889 - 92] Counsel objected to any instruction that was

not modeled after the federal instruction and outlined the basis for his objection.

The trial court made its denial clear. The objection was preserved. See State y.

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Heathcoat, 442 So.2d 955, 957 (Fla.1983) (holding defendant did not waive

objection to court's ruling refusing to give intoxication jury instruction by failing

to renew objection where judge had made it clear he would not give the instruction

and further objection would have been pointless); Carpenter y. State, 785 So. 2d

1182 (Fia. 200 1)(defendant preserved for review his objections to first-degree

felony murder instruction, even though defense counsel did not renew objection

when jury was instructed; counsel objected during charge conference and

specifically advised trial court of basis for objection).

As to the merits, Appellant relies on the arguments in his Initial Brief

V. The trial court erred in instructing the jury on hazing.

Appellant relies on the arguments in his Initial Brief.

VI. The trial court erred in denying the motion for mistrial.

Appellant relies on the arguments in his Initial Brief.

CONCLUSION

Section 1006.63 is unconstitutionally overbroad and vague and, as such, this

Court must remand with instructions that Appellant be discharged of counts 2, 3, and

This Court must further remand with instructions that Mr. Martin be discharged

of count 1 because the hazing statute, a special statute, is controlling over a more

[4]

general statute, in this case, manslaughter

In the alternative, this Court must reverse and remand for a new trial because

the trial court erred in admitting testimony and photographs of the autopsy which

were obtained after a break in the chain of custody and which were prejudicially

gruesome.

A new trial is further warranted because the trial court improperly instructed

the jury on the law pertaining to uncharged conspiracies and to hazing.

Finally, Mr. Martin is also entitled to a new trial because of the prosecutor's

improper comment during closing argument.

ectfully

CERTIFICATE OF SERVICE AND CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished by e-service to the Office of the State Attorney and the Office of the

Attorney General, this day of APRIL, 2016.

I FURTHER CERTIFY that the foregoing Initial Brief of Appellant satisfies

the font requirements of Florida Rules of Appellate Procedure 9.100(l) and

9.21 0(a)(2)

Resp submitted,

es Martinez, E Fi daBarNo. Escobar & Associates, 2917 W. Kennedy Boulevard, Suite 100 Tampa, Florida 33609 Tel: (813) 875-5100 Fax: (813) 877-6590 Email: fmartinez@escobarlaw.com

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